Two JBC problems

The Judicial and Bar Council (JBC), the agency mandated to recommend appointees to the judiciary, is facing two serious and urgent constitutional problems: First, is Congress entitled to two seats and two votes in the JBC? And second, in lieu of acting Chief Justice Antonio T. Carpio who inhibited, who should preside over the JBC proceedings to select nominees for the top judicial post?

Congressional entitlement. The JBC, to quote the Constitution verbatim, is “composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”

A physical count of the above constitutional enumeration shows a total of seven members, three-ex officio and four regular. However, actually sitting, deliberating and voting at present are eight members because two members of Congress—a senator and a congressman—instead of “a representative” participate in the JBC sessions.

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The correct count is important because, under Rule 10, Sec. 1 of the JBC Rules, an applicant needs “to obtain the affirmative votes of at least a majority of all the Members of the Council” to be included in the short list to be submitted to the President. If the total JBC membership is reckoned at eight, then the majority vote is five; if it is seven, then it is only four.

Legal arithmetic. When Chief Justice Claudio Teehankee originally convened the JBC in 1987, Congress had only one representative; a senator or a congressman, who sat alternately, not simultaneously, in the council. Later on, a senator and a congressman sat simultaneously, but each of them cast only one-half vote. Thus, only seven votes were actually available even if eight members took part in the sessions.

However, during the term of Chief Justice Hilario G. Davide Jr., the Senate’s representative to the JBC—Sen. Aquilino Pimentel Jr.—convinced the council to allow the two representatives of Congress to cast one vote each, thereby bloating the JBC’s membership to eight, on the ground that the grant of only one representative to Congress was premised on the originally-proposed unicameral legislature (the National Assembly).

After the Constitutional Commission voted to junk the unicameral system and adopted the bicameral Congress composed of the Senate and House of Representatives, the Committee on Style of the Constitutional Commission overlooked changing the JBC composition to reflect the bicameral nature of the legislature, so Pimentel argued.

When I became Chief Justice and ex officio JBC chair, I remember that Dean Amado L. Dimayuga, JBC member representing the academe, formally asked the JBC in 2006 to revert to the old practice of allowing Congress only one representative and one vote.

However, Senator Francis Pangilinan, the then Senate representative, persuaded the council to table the Dimayuga proposal on the ground that only the Supreme Court had the jurisdiction to rule on the issue. I did not render my opinion to the council because I would have had to inhibit (for prejudging the case), had the matter been brought to the Court. Sadly, however, nobody brought the issue to the high court.

Comes now former Solicitor General Francisco I. Chavez who filed a formal petition in the Supreme Court formally challenging the dual representation and dual votes of Congress. I agree with him that Congress should be allowed only one vote because the Constitution is clear: the legislature is entitled only to “a representative.”

Besides, with two representatives and two votes, Congress enjoys an unfair advantage over the two other branches of government, which have only one ex officio representative each, the secretary of justice for the executive branch and the chief justice for the judicial branch. Even the other sectors (bar, law professors, retired Supreme Court justices, and private sector) are each entitled to only one member.

Acting presiding officer. The second problem had been settled on July 3, 2012 when the Supreme Court ruled in “Dulay vs JBC” that “the most senior justice of this Court who is not an applicant for the position of Chief Justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over its proceedings in the absence of the constitutionally named Ex Officio Chairman…”

Despite this ruling, some JBC members claim that the matter is unsettled because the above-quoted portion of the ruling is only an “obiter.” I respectfully disagree. The issue of who is to preside the JBC was specifically raised in the Dulay case. The above quotation is thus the “ratio decidendi,” not merely an obiter. Further, the JBC, by express provision of the Constitution, is “under the supervision of the Supreme Court.” Hence, the Court’s duly authorized representative should head it.

Finally, under Republic Act 296, “In case of vacancy in the office of the Chief Justice of the Supreme Court, or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified.” Thus, the most senior justice who is not applying for the vacancy should preside over the JBC proceedings to fill up the vacant chief justice post because such duty “devolves” upon him or her under RA 296.